Citation Nr: 0805113
Decision Date: 02/13/08 Archive Date: 02/20/08
DOCKET NO. 05-33 424 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Portland, Oregon
THE ISSUE
Evaluation of post traumatic stress disorder (PTSD),
currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from July 1968 to November
1972.
This matter comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a March 2004 rating
decision, by the Portland, Oregon, Regional Office (RO),
which granted service connection for post-traumatic stress
disorder (PTSD) and assigned a 50 percent disability rating.
The veteran perfected a timely appeal of the rating assigned.
The veteran was offered an opportunity to request a hearing
before VA on the Substantive Appeal (VA Form 9) he submitted
in October 2005. He requested a hearing before a Decision
Review Officer (DRO). The record indicates that, in lieu of
a formal hearing, the veteran accepted an informal conference
with the DRO in April 2006.
In a statement in support of claim (VA Form 21-4138), dated
in April 2006, the veteran raised the issues of entitlement
to service connection for a skin condition and entitlement to
a total disability rating based on individual
unemployability. Those issues have not been developed for
appellate review and are referred to the RO for appropriate
action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the
Board does not have jurisdiction of issues not yet
adjudicated by the RO).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
The Veterans Claims Assistance Act (VCAA) requires that VA
must provide notice that informs the claimant (1) of the
information and evidence not of record that is necessary to
substantiate the claim, (2) of the information and evidence
that VA will seek to provide, and (3) of the information and
evidence that the claimant is expected to provide.
Furthermore, VA must "also request that the claimant provide
any evidence in the claimant's possession that pertains to
the claim." 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1).
After examining the record, the Board concludes that further
assistance to the veteran is required in order to comply with
the duty to assist as mandated by 38 U.S.C.A. § 5103A. The
evidence currently on record is insufficient for the purpose
of ascertaining the severity of the veteran's headache
disability.
The veteran is seeking a rating in excess of 50 percent for
PTSD. The Board has determined that additional development
is necessary prior to completion of its appellate review of
the claim for the following reasons.
The Board notes that the veteran's most recent comprehensive
psychiatric examination for compensation and pension purposes
was conducted in May 2006. The veteran was diagnosed with
PTSD, chronic and moderate; and mood disorder due to
rheumatoid arthritis; a Global Assessment of Function (GAF)
score of 46 was assigned. The examiner stated that the
veteran reported symptoms which met the DSM-IV criteria for
PTSD, mood disorder due to rheumatoid arthritis. The
examiner also noted that the veteran's symptoms included no
longer having any friends due to his irritability, anger, and
unwillingness to deal with other people's problems.
In a supplemental statement of the case (SSOC), issued in
June 2006, the RO noted that, in addition to PTSD, the VA
examiner also diagnosed a mood disorder to rheumatoid
arthritis which is not service-connected; the RO also noted
that the mood disorder was also reflected in the GAF score.
As such, it was concluded that the PTSD was not only
moderately disabling.
However, the Board is precluded from differentiating between
symptomatology attributed to service-connected disability and
non service-connected disability in the absence of medical
evidence which does so. See Mittleider v. West, 11 Vet. App.
181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136,
140 (1996). In this regard, the Board notes that the medical
evidence reflects some confusion as to the extent of
disability the veteran manifests due to his PTSD, alone.
Thus, the current status of the PTSD is uncertain, and a
follow-up examination is indicated. For this reason, the
case must be remanded for a medical opinion which
differentiates between service-connected and non-service
connected pathology, to the extent possible.
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to his claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO via the AMC in Washington, D.C., for the
following actions:
1. The veteran should be scheduled for a
VA psychiatric examination to evaluate
the nature and severity of his service-
connected PTSD. The claims folder should
be made available to the examiner. The
examiner should describe all findings in
detail. If it is not possible to
differentiate between impairment
resulting from PTSD and impairment
resulting from any other non-service-
connected disorder, the examiner should
state this in the report. The examiner
should assign a numerical code under the
GAF scale. The findings of the examiner
should address the level of social and
occupational impairment attributable to
the veteran's PTSD. A complete rationale
should be provided for any opinion
expressed.
2. Thereafter, the RO should
readjudicate the claim on appeal in light
of all pertinent evidence and legal
authority. The veteran and his
representative must then be afforded an
opportunity to respond thereto.
3. The AOJ is at liberty to issue any
additional VCAA notification that is
deemed necessary.
After the above actions have been accomplished, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. By this REMAND the
Board intimates no opinion, either legal or factual, as to
the ultimate determination warranted in this case. The
purposes of this REMAND are to further develop the record and
to accord the veteran due process of law.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).